Volume 206 — Missouri Appeal Reports

<p>1. FRAUDULENT CONVEYANCES: Sales: Mortgage: Possession Thereunder Considered ‘ ‘Disposition of Property’ ’ under Bulk Sales Statute. Taking possession of a stock of goods under a chattel mortgage by garnishee, who failed to demand and receive written statement of names and addresses of all creditors of defendant, the amount of indebtedness of each and to notify said creditors before taking possession as required by the Bulk Sales Act, Laws 1913, page 163, section 1, was such a “disposition of property” within the provisions thereof .as rendered the chattel mortgage fraudulent and void as to creditors regardless of intention of parties and of fact that defendant was indebted to garnishee.</p> <p>2. -: Possession: Violation of Bulk Sales Act: Garnishee Liable to Creditor. Where garnishee obtains possession of debtor’s goods without complying with law with reference to sale or disposition in bulk of stocks of merchandise through a conveyance under the law fraudulent and void and converts them to its own use, it is liable to the plaintiff creditor in garnishment proceedings.</p> <p>3. —=-: Bulk Sales Act: Right of Creditors: Garnishment Remedy: Proviso of Section 2, Laws 1913, page 163, Authorizing Vendor’s Lien Not Applicable in Garnishment Proceeding. Where a creditor did not proceed under section 2 of the Act of March 25, 1913, Laws 1913, page 163, giving him a lien on specific property sold and delivered to debtor by such creditor, but proceeded by attachment and garnishment, within ninety days after delivery of stock of goods to garnishee, the proceeding, was under the right given by law to a creditor to attack and set aside a conveyance rendered fraudulent and void and is in accordance with sections 1 and 4-A thereof, so that the proviso in said section 2, in reference to vendor’s lien which the judgment attempts to enforce has no effect whatever and does not operate in any way.</p>

<p>1. NEGLIGENCE: Humanitarian Bule: Unlawful Bate of Speed: Obstructed Crossing. Where the view is obstructed both to traveler by automobile approaching a public crossing and likewise to train crew running at a high rate of speed in violation of law regulating speed- at said crossing, and the same is a place where train crew was required to maintain a lookout and where a traveler is likely to be on the highway in the use thereof, and neither can see the other until the traveler is close to the danger line, the defendant is liable where plaintiff could have escaped had the train been running at a lawful rate of speed and trainmen could have seen and avoided the injury.</p> <p>2. -: -: -: Demurrer: Evidence Sufficient to Bequire Submission to Jury. Where the evidence showed that the high rate of speed was in violation of law, and the reason the trainmen whose duty it was to maintain a lookout at a public crossing could not stop, after a traveler could have been seen, was because tbe trainmen bad negligently put tbe speed at a rate where they could not stop in time t,o avoid injuring the traveler, after his peril was, or with ordinary care, could have been discovered, and is the same as if they had discovered his peril in time and had negligently failed to act, and such facts are sufficient to require submission of case to the jury under humanitarian rule.</p> <p>3. INSTRUCTIONS: Humanitarian Case: Taking Rule Entirely Out of Case Erroneous. In an action for damages based upon a violation of the Humanitarian rule, submitted to the - jury upon that theory, where plaintiff’s evidence does not show contributory negligence as a matter of law, and there was no plea of contributory negligence in the answer, instructions which take the humanitarian rule entirely out of the case, are erroneous.</p> <p>4. APPEAL: Evidence: Objection Insufficient: Not Reviewable. Where certain evidence as to an experiment made by an automobile driver was objected to, and no reason given the trial court for its inadmissibility, the objection was insufficient to preserve the point for review on appeal.</p>

<p>1. MANDAMUS: Pleading: Matters Well Pleaded Not Expressly Denied, Admitted to be True. It is a well-established rule in mandamus that all matters well pleaded by relator and not denied by respondent in express terms are admitted to be true.</p> <p>2. MUNICIPAL CORPORATIONS: Civil Service: Position of City Hall Engineer Within Civil Service Provision: Power of Discharge. The position of engineer at the city hall in Kansas City is within section 5, of article 15, of the civil service provisions of the Charter, of Kansas City, though there is no express provision therein authorizing the appointment, and under section 10, of article 15, of the Charter, all appointments and removals shall be.made-by respective heads of certain departments under civil service rules, the appointment thereof falls to the Mayor, within meaning of Civil Service Law as the acting “head of the department” making such appointment, and while section 4, of article 15, exempts certain places filled by the Mayor, it did not exempt that of engineer, and although section 10, of article 15, provides that investigation may be made of dismissal or discharge of officials for political, or other reasons, by Commissioners or Board of Civil Service, and report thereof made to the Mayor and officer or tribunal,, having power to remove such officer, the position is not thereby taken out of the civil service rules, for the report is not made to the Mayor alone, but also to the tribunal having power under the Charter to remove the officer ordering the discharge, and the Mayor himself being subject to removal by the common council under section 3, of article 4, of the Charter, the power to discharge must be in accordance with express provisions of charter.</p> <p>3. - — : Civil Service: Empoyee Discharged: No Provision for Reinstatement: Right Protected by Law, Otherwise There Would be a Wrong Without a Remedy. For one who has been discharged in violation of the Charter’s Civil Service Law the right of reinstatement does not depend for its existence upon an express provision to that effect in the charter, but such right is given by law to one, who while holding and in possession of a valuable position performs the duties thereof, otherwise the right to hold many places would be beyond judicial aid, and there would be a wrong without a remedy. '</p> <p>4. MANDAMUS: Officers: Title to Office: De Facto Officer in Possession: Officer Wrongfully Removed Entitled to Restoration. Relator being rightfully and lawfully in the position performing the duties thereof, and having been wrongfully deprived of his place by the illegal appointment of another, mandamus will lie to effect his restoration even though the subsequent appointee be in possession de facto. \</p> <p>5. -: Officer: Illegal Removal: Entitled to Reinstatement and Back Salary. Where one has been illegally removed and another wrongfully put in his place he can, in mandamus, seek reinstatement, and also the payment of the salary of which he has been thus deprived.</p> <p>6. -: Payment of Salary to De Facto Officer: No Defense Against Person Entitled to Position and. Emoluments Thereof. Where the wrongful discharge, and not the appointment of another person to a position, prevents the proper incumbent from performing the duties and obtaining the salary pertaining thereto, the payment by city of such salary to illegal appointee is no defense in a mandamus proceeding to compel reinstatement and. payment of compensation.</p> <p>7. -: Officer: Wrongful Removal: Entitled to Salary Independent of Actual Performance of Duties. An officer illegally removed is entitled to the salary of his position during his term and his right thereto is independent of his actual performance of any duties whatever.</p> <p>8. -: -: Payment of Salary in Good Faith to Substitute Appointee With Knowledge of Claim of Ousted Official: No Defense. Where the wrongful discharge and illegal substitution of another in official's place ‘occurred, and suit for reinstatement begun and alternative writ issued in less than thirty days after discharge so that city paid such substitute appointee with full knowledge of claim of relator to reinstatement, it is no defense to relator’s action that compensation was paid to such substitute appointee in good faith.</p> <p>9. -: No Definite Term: Right to Salary Does Not Apply Strictly to Public Officer With a “Fixed Term:’’ Duties Analogous to Public Office. Where the position is one wherein legal incumbent had the right to perform the duties and functions required of him and the services rendered are of public concern, the position is one with such characteristics as make it analogous to a public office and Civil Service Law supplies “fixed term” by permitting official to remain in position so long as he properly performs duties or until legally removed.</p>

<p>1. PARTITION: Personal Property: Change of Possession: Title: Necessity of Delivery: Notice. Where a purchaser does not get title to the entire property he is not entitled to the exclusive possession of the property, but where there is some visible act clearly and unequivocally indicating a delivery of possession of an interest in the property, imparting notice to third persons that a change of ownership has taken place, a conveyance thereof is not void under section 2282, Revised Statutes 1919.</p> <p>2. -: Evidence: Joint Ownership: Notice: Fraudulent Conveyance: Sufficient Delivery: Possession. The placing of an automobile in the hands of a third person as bailee and notification to him that he is holding the same jointly for the vendor and vendee, each exercising rights of ownership in the car are such visible acts of delivery of possession of their respective interests therein, as was necessary under the circumstances, and sufficient change of possession to take the case out of section 2282, Revised Statutes 1919.</p> <p>3. -■ — : Remedy: Disputed Title and Possession: Equity Jurisdiction. A joint owner of personal property has the right to partition the same in a court of equity, although he is not in possession, his title thereto disputed, and entire estate adversely claimed.</p>

<p>1. FALSE IMPRISONMENT: Arrest: Without Valid Authority or Legal Right Constitutes False Imprisonment. Where there was no valid authority, or legal right, to make an arrest, the same constituted a true case of false imprisonment, and where said arrest was caused by an agent, acting for all of the defendants, ■ connected therewith, defendants are liable.</p> <p>2. -: Instigation: Participation: Inability. Where defendant instigated the arrest of plaintiff and participated therein he rendered himself liable for false imprisonment.</p> <p>3. APPEAL AND ERROR: Admission of Evidence: No Exception: Not Available on Appeal. Where no exception is saved to the admission of evidence in the trial court, and the admission thereof is erroneous, it cannot avail defendant on appeal.</p> <p>4. EVIDENCE: Memoranda not Written Declaration of Agent Made in Performance of Duty, But of Past Transaction, Inadmissible. An exhibit or written memorandum made the day following an arrest by police officer was inadmissible, because it was not the written declaration of an agent made while performing an act for his principal, but was a record of a past transaction made after the arrest was accomplished.</p> <p>5. -: Memoranda Not an Entry in Record Required to be Offically Kept is Inadmissible. Where a memorandum or exhibit is not an entrry in any book or register which it was the official duty of a police officer to keep, or which he was required to make, and does not concern something the officer making memoranda did, but is a statement of what some one else did is inadmissible.</p> <p>6. FALSE IMPRISONMENT: Malice Not Essential: Punitive Damages. Malice is not an essential element of false imprisonment, except to authorize punitive damages.</p> <p>7. <-: Malice: Punitive Damages: Question for Jury. In an action for false imprisonment, evidence held sufficient to make it a question for the jury whether there was malice and whether punitive damages should be assessed.</p> <p>8. -: Wrongful Arrest: Legal Malice: Instruction, on Punitive Damages Justified. Where the arrest and imprisonment of plaintiff is unjustifiable, a thing wrong in itself, and such as would oppress, humiliate and injure him, and to do such without authority and in reckless disregard of plaintiff’s rights, constitutes legal malice sufficient to justify an instruction on punitive damages.</p> <p>9. INSTRUCTION: Assumption of Material Fact, Not Conceded: Erroneous. An instruction which assumes a material fact in controversy where the record is not in such a state to make it a conceded fact is erroneous.</p> <p>10. -: Improper to Submit Disputed Issue in One Part Thereof and. Assume Issue as True in Another. An instruction is improper which submits in two paragraphs thereof a disputed issue and in another paragraph thereof assumes the same to be true.</p>

<p>Appeal from Benton Circuit Court. — Hon. G. A. Galvird, Judge.</p>

<p>Appeal from Adair County Circuit Court. — Eon. J. A. Cooley, Judge.</p>

<p>Appeal from Selruyler Circuit Court. — Hon. N. M. PetUngill, Judge.</p>

<p>Appeal from Bates County Circuit Court. — Hon. C. A. Galvird, Judge.</p>

<p>1. APPEAL AND ERROR: Error in Submitting Case to Jury Where Equitable Relief was Asked Held Harmless. In an action on a note given for part of tbe purchase price of land, where defendant set up a counterclaim based upon' fraud and deceit and asked the affirmative relief of having the note cancelled, submitting the case to the jury could not harm the plaintiff, where he got judgment for the full amount asked for on his note, and the jury rendered judgment in favor of defendant on the counterclaim for the same amount.</p> <p>2. JUDGMENT: Judgment in Ejectment Held Not Bar to Counterclaim in Action on Note Given on Purchase Price. Where suit was brought in ejectment by the vendor of a farm after default had been made by defendant, and defendant set up a counterclaim for damages based on certain fraudulent representations, and judgment was for plaintiff, such judgment was no bar to a counterclaim based upon the same fraudulent representations in an action by the plaintiff on a note given for a part of the purchase price of the land, where the counterclaim in the first suit was not urged by the defendant and no disposition whatever was made in the judgment concerning it.</p> <p>3. -: Res Judicata Only as to Questions Actually Tried. Where one seeks to apply the estoppel of a judgment rendered upon a cause of action to matters arising in a suit upon a different cause of action, the inquiry must be as to the questions actually tried and determined in the original action, not what might have been litigated and determined.</p> <p>4. FRAUD: Representations Concerning Quality of Land, Held Representations of Fact Amounting to Fraud. Statements of vendor that timber on land was good and merchantable, that cistern and ponds were lasting water, and that 190 acres of the land were in cultivation, were representations of fact which, if untrue, amounted to fraud.</p> <p>5. APPEAL AND ERROR: Verdict Supported by Substantial Evidence not Disturbed. There being substantial evidence to sustain a verdict, appellate court is not permitted to interfere therewith.</p>

— Hon. Sterling H. McCarty, Judge. (1) “Statements made by the conductor to the injured passenger is not admissible in evidence on the ground that the conductor was an agent and representative of the Company and not admissible as a part of the res gestae.” Redman v. Railway, 185 Mo. 1, 11; Mc-Dermot v. Railway, 73 Mo. 516; Ruschenberg v. Railway, 161 Mo. 79-80; Barker v. Railway, 126 Mo. 143; State ex rel. v. Reynolds, 208 S. W. 620; Leeinan v. Railroad, 151, Mo.

— Hon. L. B. Woodside, Judge. (1) Injunctions lie only for a threatened wrong, for which no adequate legal remedy is afforded, and a court of equity will not issue an injunction to prevent the performance of an act already consummated. Carlin v. Wolff, et al., 154 Mo. 539; Owen v. Ford, 49 Mo. 436; Davis v. Hartwig, 195 Mo. 380; Verdin v. St. Loins 131 Mo. 26; Railroad v. Mining Co., 138 Mo.

— Hon. Charles L. Henson, Judge. (1) The record shows that the liquor was not taken as property but as a nuisance being hawked around on our streets and that the questions involved in the case were being investigated by a court having ample and exclusive jurisdiction with ample protection of plaintiff’s fights. Colbey on replevin. Sections 316 and 317, and authorities cited.

— Hon. L. B. Woodside, Judge. (1) We apprehend there will he no. dispute as to the law, but we cite the following authorities in this State ■which settle the proposition that the riparian owner owns only to the low water mark and not to the middle of the stream of a navigable river in this State..

<p>1. MINES AND MINERALS: Negotiating Agent Under Duty to Account for Secret Profits in Purchase of Mine. Where plaintiff mining engineer negotiating for a mine property, which he and defendants were to work as a partnership, purchased the property himself for $9,000 and resold it to defendants, his associates,' for $13,500 without disclosure, he must account to defendants for his secret profit of $4,500, though under his operation the mine was profitable and shortly reimbursed defendants.</p> <p>2. -: That Partner Acted as Agent in Purchasing Mine, Which He Sold to Partners at Advance, Admissible. In suit by a mining partner for an accounting wherein defendant partners counterclaimed for a secret profit secured by plaintiff in originally buying the mining property for himself and reselling it to them at an advance, testimony of a, defendant that plaintiff was the agent of defendants in purchasing the mine, held admissible.</p> <p>3. -: Misrepresentation by Plaintiff Partner Charged With Having Made Secret Profits Admissible. In suit by mining partner for accounting wherein defendant partners counterclaimed for a secret profit secured by plaintiff in originally buying mining<property for himself and reselling it to them at advance, testimony-of a defendant that plaintiff said he paid the seller of the property $13,500, it being admitted he only paid $9,000, held admissible to show a misrepresentation as to the facts, to be considered toy the court for whatever value it was worth.</p>

<p>1. MASTER AND SERVANT: Negligence in Directing Inexperienced Servant to Operate Drill, Held Question For Jury. In an action by an inexperienced workman, injured while using a drill operated by compressed air, negligence in directing him to use it held, under the evidence, a question for the jury.</p> <p>2. TRIAL: Instruction Held Equivalent to Declaration That Masterr is Negligent as a Matter of Law. In an action by railroad employee injured by using a drill operated by compressed air, an instruction that if the employee jvas directed to use the machine, that he was known to be inexperienced, and was unaware of the danger, that he was informed hy the foreman that he could operate the drill with safety, and that while exercising reasonable care for his own safety, the servant was injured, verdict should be for him, was tantamount to a charge that the master was negligent as a matter of law.</p> <p>3. NEGLIGENCE: When Case For Jury; It is only where the facts are such that all reasonable men must draw the same conclusion that the question of negligence is for the court.</p>

<p>1. EXECUTORS: Removal: Substantial Controversy Between Executor and Estate Sufficient to Remove on Ground Unsuitable to Act. Under section 50, Revised Statutes 1909, in a proceeding to remove an executor on the ground- that Tie is unsuitable to act as such, because of his claim to the ownership of a certain note belonging to an estate, it was not necessary to show that the estate was the owner of the property, but only to show that there was a real and substantial controversy as to the ownership of the note and that there was reasonable and probable cause to believe that the note belonged .to the estate.</p> <p>2. -: -: Conflicting Interests: Unsuitable to Execute Trust. Under section 50, Revised Statutes 1909, an executor of an estate who stands in the position of a. trustee and assumes a position where his interests conflict with that of the estate, it is the positive duty of the court to remove him on the ground that he has become incapable or unsuitable to execute the trust reposed in him.</p> <p>3. -: -: Right to Determine Title to Note in Statutory Proceedings Does Not Prevent Removal of Executor. The fact that a< remedy was afforded plaintiff under section 70, Revised Statutes 1909, does not prevent plaintiff from seeking removal of executor as one unsuitable to execute trust because of interests conflicting with that of estate, as provided by section 50.</p> <p>4. --: -: Proceeding in Rem: Removal Solely Upon Grounds Mentioned in Statute for Causes Arising After Appointment. Under section 50, Revised Statutes 1909, the proceeding is one in rem, and removal can be only upon grounds mentioned in said section and for causes arising after appointment.</p> <p>5. COURTS: Probate Courts Have no Equity Jurisdiction: Jurisdiction of Circuit Court on Appeal is Derivative. Probate courts have no equitable jurisdiction and the jurisdiction of the circuit court on appeal from the probate court is derivative.</p> <p>6. -: Jurisdiction: Probate Court May Invoke Equity Principles, Under section 4056, Revised Statutes 1909, the probate court has jurisdiction “over all matters pertaining to probate business,” and in all such matters said court has jurisdiction where the issue can be settled at law, involves a simple matter, and the court may invoke equity principles in disposing of such business.</p> <p>7. EXECUTORS: Removal: Antagonistic Position: Probate Court'in Removing Executor Does Not Exercise Equity Jurisdiction by Invoking Equitable Principles. The probate court in removing an executor, who has become “incapable or unsuitable” to execute the the trust reposed in him, does not exercise equity jurisdiction, but is only invoking the equitable principle that equity and good conscience will not permit one to occupy an antagonistic position in transactions of this kind.</p> <p>8. -: -: Incapable or Unsuitable to Execute Trust: Principle of Ejusdem Generis Has no Application. In construing section 50, Revised Statutes 1909, providing that an executor may be removed if he is “in any wise incapable or unsuitable to execute trust reposed in him,” the principle of ejusdem generis has no application for said phrase being complete within itself, the words in the statute preceding the words quoted exhaust their class and the general words following must be construed as .embracing something outside of that class.</p>

<p>1. VENUE: Non-resident of County, Not Jointly Liable, improperly Made Defendant. Under section 1751, Revised Statutes 1909, where there is no joint liability, a defendant, non-resident of the county where suit is brought, cannot be joined.</p> <p>2. PLEADING: Answer: Plea to Jurisdiction May Be Joined with Plea to Merits. Where there is no joint liability, if same does not appear on the face of the petition, it may be taken advantage of by answer, where it may be joined with a plea to the merits.</p> <p>3. VENUE: Jurisdiction: Waiver: Entering Into Trial on Merits Waives Jurisdictional pefect of Improper Venue. It was the duty of the trial court to settle the matter of its jurisdiction before going into trial on the merits, for such a trial assumes that the court has jurisdiction at every step, and if the defendant, asserting a lack of jurisdiction, enters into a trial on the merits without calling the court’s attention to his plea to the jurisdiction, he waives the jurisdictional defect of improper venue.</p> <p>4. CONVERSION: Unlawful Sale: Constable Guilty of Conversion. Where there was no judgment shown, or an execution upon any judgment, and there was no showing of any advertisement of the sale under execution, as provided by section 7548, Revised Statutes 1909, nor was there any showing of any sale, such as provided by section 7549, Revised Statutes 1909, or any return of the constable offered to show any sale,-the court did not err in instructing the jury that a constable's sale was not shown to have been had and conducted according to law, as he was guilty of a conversion of the goods.</p> <p>5. INSTRUCTION: Not Covering Entire Case and Directing Verdict Must be Read With the Other Instructions. An instruction which does not purport to cover the entire case and direct a verdict must be read in connection with all the instructions given by the court on the subject.</p> <p>6. -: Measure of Damages: Not Misleading When Read With Other Instructions. In an action for conversion, an instruction to assess damages “in Such amount, if any, you find to be the reasonable total value ... of the property,” etc., it is held, that reading all the instructions together the jury would understand that they were to allow damages only for the reasonable market value of the goods-converted.</p> <p>7. EVIDENCE: Indefinite: Best Obtainable: Sufficient to Support Verdict. Where the evidence as to the value of goods sold after inventory was not as definite as might be desired, but no evidence of a more definite character could be obtained, the same was sufficient to support the verdict.</p> <p>8. -: Witnesses: Inventory May be Used to Refresh Recollection as to Value. The court did not err in permitting plaintiff and his wife to use a so-called “lump” inventory, which was copied from an original inventory, for the purpose of refreshing their recollection as to the value placed upon stock of merchandise by them when they took the inventory.</p> <p>9- -: Wife Acting as Agent of Husband, Competent to Testify. There was no error in permitting plaintiff’s wife to testify as to the value placed upon the stock, where it was shown that she was acting as plaintiff’s agent at the time the inventory thereof was made.</p> <p>10. --: Witnesses: Offer of Proof: Witnesses not Qualified to Testify to values, Objection Properly Sustained. The court did not err in sustaining an objection to testimony of certain witnesses as to reasonable market value of stock of goods, where there was no offer of proof that said witnesses were qualified to testify as to the value thereof.</p>

<p>PROHIBITION: Judgment and Mandate of Court of Appeals Quashed by Supreme Court: Execution a Nullity: Prohibition Proper Remedy. Where the judgment and opinion of the Supreme Court rendered a judgment of the Court of Appeals, and mandate issued therein, nullities, the judgment of the circuit court and the execution issued thereon, being bottomed on such mandate of the Court of Appeals which was withdrawn, fell with it, and when execution was issued on the strength of such judgment and mandate, the execution became a nullity, having nothing upon which to stand, and the whole case was within the reach of the writ of prohibition, and the fact that the circuit court had adjourned for the term can make no difference, inasmuch as that court was endeavoring to carry out a judgment which had b'een nullified by the action of the Supreme Court.</p>

Frank Kelly, Judge. (1) Either in case of fraudulent representations, or of mistake as to the quantity of land in a certain tract conveyed, and, the land is sold by the acre and there is a shortage in acres arising from mutual mistake, equity will grant the purchaser a proportionate abatement of the price, or, if the consideration has been paid, the purchaser may sue in equity and secure a judgment requiring the vendor to restore a portion of the consideration, being the…

Louis County.— Hon. John W. McElhinney, Judge. (1) So far as the case is controlled by the Statute of Limitations, section 6796 of the Revised Statutes of 1889 applies, and not section 1912 of the 1909' revision of the statute. McFaul v. Haley, 166 Mo. 56, 63.

<p>1. NEGLIGENCE: Pleading: Specific Acts: Failure of Proof Bars Recovery: Res Ipsa Loquitur: When Available. One who pleads specific acts of negligence must prove such negligence or enough of such acts to justify a recovery, and a failure so to do bars him from a recovery, and this is true although he might have pleaded negligence.generally and by an invocation of the doctrine res ipsa loquitur had a recovery upon making proper proof.</p> <p>2. -: -: Flag Pole Falling on Pedestrian: Presumptions. The fact that defendant maintained a large flag and staff, or pole, on its building extending over the sidewalk and over the heads of people lawfully passing, and that it fell upon plaintiff, a passer-by, injuring her, sufficed to raise a presumption of negligence on the part of defendant.</p> <p>3. -: -: -: Res ipsa Loquitur: Petition Not So Specific as to Lose Benefit. In an action for damages for personal injuries alleged to have been caused by a flag pole falling upon plaintiff as she was passing along the sidewalk, where the petition, as a matter of inducement, charged that the defendant “suspended and maintained” a flag pole on defendant’s building over the sidewalk; i. e., that defendant placed it in such position and kept it there, and the subsequent charge of negligence is nothing more than a charge that in respect to such suspension and maintenance aefendant was, in some manner, negligent, held that plaintiff’s petitions is not so far specific in its character as to cause plaintiff to lose the benefit of a presumption of negligence on the part of defendant.</p>

Louis. —Hon. Kent K. Koerner, Judge. The court erred in giving, of its own motion, instruction No. 5, for the reason that it did not submit the specific act of negligence set out in the petition, but was merely a “roving commission” to the jury to find for plaintiff “on any theory of negligence they might evolve out of their own minds.” Beave v. St. Louis Trans. Co., 212 Mo. 331; Allen v. St. Louis Trans. Co., 183 Mo. 411; Miller v. U. R. Co., 155 Mo.

<p>Appeal from the Circuit Court of the City of St. Louis.— Eon. George E. Shields, Judge.</p> <p>The plaintiff cannot recover in this case, because: (1) No payment of principle or interest was made within the time required by law. Revised Statutes 1909, sec. 10280; 1 Wood on Limitations, vol. 1, page 12; Angelí on Limitations, page 51; Schleuter v. Albert, 39 Moi. App. 154,160; Stanton v. Gibbins, 103 Mo. App. 267; Griesel v. Jones, 123 Mo. App. 45, 50; Austin v. Shipman, 160, Mo. App. ■206, 217; Rhodes v. Smethurst, 16 English Ruling Cases 146; Daniel v. Day, 51 Ala. 431; Meeks v. Vassault, 3 Sawyer (U. S.) 206; Granger’s Adm’r v. Granger, 6 Ohio 35; Nicks v. Martindale, 1 Harper (So. Car.) 32; Baker v. Brown, 18 Ill. 91; Brown v. Merrick, 16 Ark. 612; Kistler v. Heuth, 75 Ind. 177; Sambs v. Stein, 53 Wise. 569; (2) Even if the time intervening between the death of decedent and the appointment of administratrix be excluded, the tender was made too late. Revised Statutes 1909, sec. 8057; Revised Statutes 1909, sec. 10280; Knox v. Kelsey, 102 Mo. 291; Lenox v. Harrison, 88 Mo. 491; Ramsey v. Henderson, 91 Mo. 560. (3) No affidavit of the loss of the pawn ticket was presented within the proper time. Revised Statutes, 1909, sec. 10280.</p> <p>The court will notice that at the time defendant forfeited the pledge, his right to forfeiture had not accrued, because McPike had died some days before. He had no right, while his debtor was dead, and before letters of administration were taken out, to take any action to forfeit his rights.. The law on this proposition seems to be settled beyond controversy. In case of a wrongful conversion after decedent’s death the statute does not begin to run until after the appointment of the administrator. The statute begins to operate only from the time the right to demand the property vests in someone. Parks v. Norris, 101 Mich. 71, 59 N. W. 428; Johnson v. Wren, 3 Stew. (Ala.) 172; Haslett v. Glenn, 7 Harr & J. (Md.) 17; Fishwick v. Sewall, 4 Harr & J. (Md.) 393; Witt v. Elmore, 2 Bailey (S.C.) 595; Pratt v. Swaine, 8 B. & C. 285, 6 L. J. K. B. O. S. 353, 2 M. & R. 350, 15 E. C. L. 146. Such is the law in Missouri (see Polk v. Allen, 19 Mo. 467).</p>

Louis. —Hon. William T. Jones, Judge. (1) Statutes are to be construed according to their plain, natural and ordinary meaning and fanciful and technical interpretations are not favored. St. Louis & I. M. Ry. v. Clark, 53 Mo. 214; Henry, etc., v. Evans, 97 Mo. M. K. & T. Ry. Co., 94 Mo. App. 336.

<p>1. COURTS: Decisions: Ruling of Supreme Court Conclusive on Courts of Appeals. The last previous ruling of the Supreme Court on any question of law or equity is conclusive upon the Courts of Appeals by virtue of the constitutional mandate.</p> <p>2. DIVORCE: Alimony: Fending Appeal: Motion for Alimony and Suit Money: Filed During Term: After Appeal: Circuit Court Retains Jurisdiction to Determine Motion: Prohibition. Where the wife has been granted a decree of divorce and the husband filed his affidavit for appeal and his appeal was allowed, and thereafter and during the same term of the circuit court the wife filed a motion for alimony pendente lite and suit money pending appeal, held that in an action for divorce, though an appeal from the judgment on the merits of the case divests the circuit court of any further jurisdiction therein, yet the circuit court retains jurisdiction “for limited purposes,” namely, the matter of alimony pendente lite and suit money pending the appeal, which is a separate and distinct matter though embodied in the action for divorce and not affected by the appeal from the merits, and the circuit court had jurisdiction to hear and determine such motion for alimony pendente lite and suit money under section 2375, Revised Statutes 1909, even though filed after the appeal was allowed.</p> <p>Reynolds, P. J., dissenting in part.</p>

<p>Appeal from Circuit Court of Dade County. — Hon. B. G. Thurman, Judge.</p> <p>(1) As illustrating the point that in no case where a suit was brought to annul a decree or judgment has anyone but the parties to the original action been made a party to an annulment suit, we cite the following: Robertson v. Robertson, 163 S. W. 266,178, 478; Blass v. Blass, 186 S. W. 1094,194 Mo. App. 624; Dorrance v. Dorrance, 148 S. W. 94, 242 Mo. 625; Same case, 165 S. W. 783, 257 Mo. 317. (2) The allegation of the petition is, that defendant was the informant and made the affidavit on which the county court issued its warrant and arrested, plaintiff. An insanity proceeding is a civil or suit. State ex rel. v. Holtcamp, 138 S. "W*. 521, 235 Mo. 232. And that the one filing or being the proceeding's “is a party to it” is held in State v. Dickman, 157 S. W. 1012, 175 Mo. App. 543, where the-court said, 157 S. W. 1133: “There are only two questions involved in this case: First, is the proceeding in an inquisition to pass on the mental soundness of the party,” a suit pending'in any court in this State? Second: Is the informant “any party to such suit so that our statutes applies”? (The case arose upon a notice to take depositions.) That section (Sec. 6384, R. S. 1909) provides: “Any party to a suit pending in any court in this State may obtain the deposition of any witness, to be used in such suit conditionally.” “In the many cases in which insanity inquiries have been before our appellate courts, and in the great majority of which it appears that they were contested and the testimony of witnesses produced by the informant as well as by the party proceeded against, heard, there is no intimation to the effect that each party has not a right to produce witnesses. The power to compel attendance of a witness or party before a notary or commissioner and secure testimony is undoubted, as seen in passing, Ex parte Gfeller, 178 Mo. 248, 77 S. W. 552. We hold that the proceeding looking to an inquiry into the sanity of a person is a suit, within our law; that the probate court having ordered the inquiryto proceed on the information of the daughter has determined conclusively for us here the right of the informant to institute that proceeding; that she is a party, to a suit within the meaning of our law and as such can take and preserve testimony relevant to the inquiry by deposition.” State v. Dieckman, 157 S. W. 1012, 175 Mo. App. 543; State ex rel. v. Guinotte, 165 S. W. 718, 257 Mo. 1. (3) The county court has no jurisdiction to inquire into the sanity of the plaintiff herein. The act which purported to give the county court jurisdiction to inquire into the sanity of persons without property has been decided by the Supreme Court in a case directly involving its validity, to be unconstitutional, and in the most positive and emphatic language. In Redmond v. Railroad, 126 S. W. 159, 225 Mo. 721,' the court, after quoting the constitutional provision, Sec. 34, Art. 6, and the amendment of 1903 to R. S. 1899, sec. 3650, Sec. 474, R. S;. 1909, said: By that section, Sec. 34, Art. 6i full jurisdiction is conferred on probate courts to appoint guardians and curators for persons of unsound mind. What the Constitution has given, the General Assembly cannot take or curtail. The Constitution does not limit the jurisdiction of the probate court to cases in which the insane person owns property, but the jurisdiction is over all such persons. The probate conrt cannot appoint a guardian of an adult person until it has ascertained that he is insane, and jurisdiction to appoint the guardian necessarily carries the jurisdiction to institute and carry through the inquiry as to his mental condition. An insane person needs a guardian of his person even though he has no property, or property interest to be protected. Where jurisdiction is conferred by the Constitution the General Assembly has power to prescribe the procedure in which that jurisdiction is to be exercised, but the proviso aimed to be added to that section by the •Act of 1903 ,is not the prescribing of a procedure but a curtailment of the jurisdiction which the Constitution conferred.” (4) In State v. Woodson, 161 Mo. 454, that court said: “In that section (Sec. 1, Art. 6) the Constitution disposes of all the judical power of the State in matters of law and equity and it leaves nothing to be disposed of by the General Assembly.” In State v. Ry. Co., 162 S, W. 144, 253 Mo, 642, the court said: “The power of the General Assembly to enact laws is subject in all matters to the limitations of the Constitution of of this State whether they be expressed by prohibitory clauses or by affirmative provisions relating to the matter in hand. Both methods of restriction are equally binding on the law-making powers and no valid law can be enacted by it which contravenes either.” In State v. Locker, 181 S. W. 1003, 266 Mo. 243, the court said: “It may be therefore safely asserted as a rule that the Legislature as to the constitutionally recognized courts can neither add to or take from the jurisdiction provided for such courts by the Constitution. ’ ’ In State v. Tincher, 166 S. W. 1031, 258 Mo. 1, the court .after expressly approving the Redmond case quotes and approves the utterance of one of the great judges of the State in an earlier day, respecting the constitutionally created courts thus: “In the first place . . . the jurisdiction of this court is defined and limited by the Constitution. It has such powers and jurisdiction as the Constitution has conferred upon it — no more, no less. It cannot shirk any duty imposed upon it by the organic law, nor can it extend its powers to take cognizance of any matter not within the scope of its limited authority. The Legislature can neither add to nor diminish its rightful jurisdiction. That body can invest it with no jurisdiction when it is not given by the Constitution, nor can they deprive it of its appellate jurisdiction. . . . By parity of reasoning it would seem that this rule should apply with equal force to any other constitutional court whose powers are definitely defined as is the case in regard to probate courts, section 34, Art.,6, Con. Mo.” In State v. Brasher, 201 S. W. 1153, 200 Mo. App. 127, this court, following the decisions of the Supreme Court, has fully recognized their application to a proceeding such as this. (5) Another question was raised by the defendant — that an appeal from the county court to the circuit court might have been taken, or a writ of error prosecuted; but those remedies were not available at the time this suit was brought and the injury to plaintiff’s status and to his reputation, and the damage to him in depriving him of the means of making a-living are continuing, and a court of equity is the only place where he can obtain relief. It is also said that plaintiff has been discharged from the asylum and plaintiff is relieved from all burden and responsibility and that the judgment sought to be annulled is satisfied. It is true the incarceration and confinement in a madhouse is over; but the judgment that plaintiff was insane stands on the records of a court* apparently valid, still is referred to, still is told to those who might seek his services as a physician —a stigma on his name, a bar to his employment, and will continue as such until by a higher court the judgment is annulled, the bar .beaten down, and the stigma blotted out and his status as a man restored. In Warren v. Order etc. of America, 201 S. W. 368, this court ordered restitution to the defendant of money it had paid to the plaintiff voluntarily on a judgment, and cited unanimous nrecedents therefor. In Colburn v. Yantes, 17P Mo. 670, the Supreme Court rendered a judgment compelling restitution in a similar case.</p> <p>(1) Where a judgment was obtained by due process of law, no defense having been made, or an unavailing defense, such judgment cannot be set aside or vacated by a bill in equity. Wilkerson v. Whiting, 7 Mo. 295; Smith v. Sims, 77 Mo. 269; Railroad v. Mirrielees, 182 Mo. 141. (2) But if the judgment has been obtained by fraud, or if the court had no jurisdiction, the rule is otherwise and relief may be had. Orvis v. Elliott, 65 Mo. App. 96; Shertz v. Kirtley, 62 Mo. 417; Bates v. Hamilton, 144 Mo. 1; Fears v. Riley, 148 Mo. 49; Railroad v. Mirrielees, 182 Mo. 126. (3) In order to set aside a judgment for fraud, in direct proceedings, however, it must appear that the fraud was practiced in the very act of obtaining the judgment. Fears v. Riley, 148 Mo. 49; Railroad v. Mirrielees, 182 Mo. 126. (4) “In each county there shall be a county court which shall be a court of record, and shall have jurisdiction to transact all county and such other business as may be prescribed by law. The court shall consist of one or more judges, not exceeding three, of whom the probate judge may be one, as may be provided by law.” Constitution of Missouri, Art. 6, Sec. 36; 1. R. S. 1909, page 98; Adopted in 1875, R. S. 1909, section 3845. (5) County courts have full and complete jurisdiction in the matter of sending such of the insane poor to the State hospitals and asylums as may be entitled to admission thereto. R. 5. 1909, section 1411 to 1422, inclusive; Laws of 1911, page 115; Laws of 1919, page 182. (6) County courts are ve'sted with judicial powers and their judgments cannot be collaterally attacked. Constitution of Missouri Article 6, section 1, R. S. 1909, page 85; Benton County v. Morgan, 163 Mo. 661; McKenzie v. Donnell, 151 Mo. 431. (7) An implied limitation on the legislature’s power to enact a certain statute must be so clear and unmistakable as to make possible no other reasonable construction of the language used than that the power to enact the statute does not exist. A possible inference of its non-existence is not sufficient. It must always be borne in mind that our organic law is not like the Federal Constitution, a grant of power, but is simply a limitation upon power which the Legislature otherwise possesses. State ex rel. v. Burton, 266 Mo. 717; State ex rel. v. Locker, 226 Mo. 393. (8) Where the constitution, in defining the jurisdiction of courts, uses no words of restriction, the Legislature is authorized to confer upon them or the ' judges thereof, other duties, powers and functions. State ex rel. v. Tincber, 258 Mo. 1. (9) The defendant is not a necessary, nor a proper, party to this action, and there is a defect of parties defendant. “The general rule is that all parties interested in maintaining a judgment should be made parties to the proceedings to vacate it.” 15 Standard Encyclopedia of Procedure, page 208; Turner v. Jordan, 67 Ga. 604; Ferguson v. Smith, 10 Kansas, 394; Bevere v. Beardmore, 40 Ohio St. 70-79. (10) The parties in interest, in a proceeding in an inquest de lunático under our statute, is first the public at large, that it may not suffer in person or property from the dangerous vagaries or mania of the individual alleged to be of unsound mind, and second, the alleged insane person. State ex rel. v. Guinotte, 257 Mo. 1. (11) The plaintiff was and is not without a remedy at law. An appeal from the judgment in the insanity proceedings in the county court could have been prosecuted to the circuit court of Lawrence county. B. S. 1909, section 3956. A writ of error from the circuit court could have been prosecuted at any time, as a matter of right, within ninety days from the judgment in the insanity proceedings. R. S. 1909, sections 2055 and 2056.</p> <p>The effect of the judgment in the insanity proceedings was to subject plaintiff to confinement and treatment in the state hospital, and the law provided for his discharge therefrom by the superintendent thereof when in the judgment of that official the reason of plaintiff Avas restored. R. S. 1909, Section 1404.</p>

<p>1. TRUSTS: Trustee Entitled to Compensation for Services at Request of Beneficiaries, Unless There is Express Prohibition. A trustee is entitled to reasonable compensation for services rendered at the request of the beneficiaries, where there is no expressed prohibition denying him compensation.</p> <p>2. PRINCIPAL AND AGENT: Agent Selling Stock and Subsequently Collecting Certificates of' Indebtedness Held .not Precluded from Charging Commissions on Collections. Where a contract between the stockholders of a corporation, authorizing one of them to sell all the stock for a price payable in part in certificates of indebtedness, provided that neither the agent making the sale nor any other stockholder was to receive any compensation in or about the sale, such provision ceased when the sale was made, and the agreed price, including the certificates of indebtedness, delivered, and did not prevent the agent or another stockholder, subsequently collecting interest and principal of the certificates of indebtedness under subsequent agreements, from charging a commission on the amounts collected.</p> <p>3. TRUSTS: Second Trustee Held not Deprived of Compensation Because Prior Trustee had Waived Compensations. Where stockholders, selling their stock for a price payable partly in certificates of indebtedness, authorized one of them to receive payments of the certificates, and, after his death, agreed that another should act as trustee, the. fact that the stockholder first acting' as trustee waived any right to compensation did not preclude the subsequent trustee from claiming pay for his services.</p>

<p>1. CRIMINAL LAW: Terms Included in Number of Terms within which Defendant was Entitled to be Tried Stated. Where defendant was granted a change of venue, and the cause was transferred to another circuit instead of selecting a special judge, or calling in a judge of another circuit, under Revised Statutes 1909, section 5201, and where on defendant’s motion the cause was stricken, and the papers transferred back, on the ground that no recognizance to appear in such court had been executed, the term at which the change of venue was granted and the term at which the cause was retransferred will be excluded from number of terms after the indictment was found at which defendant was entitled to be tried under sections 5246-5249.</p> <p>2. -: Delay Incident to Change of Venue by Defendant not Charged to State. Any delay incident to the taking of the change of venue by defendant cannot be charged to State..</p> <p>3. -: Continuing of Case to Adjourned Term not a “Continuance” Within the Statute. The continuing of the case at the regular term to an adjourned term is not a “continuance” within Revised Statutes 1909, sections 5246-5249, prescribing the number of terms during which a defendant is entitled to be tried when there has been a “continuance.’’</p> <p>4. -: Defendant Entitled to Discharge for Delay Must Apply for Discharge at the Time. The defendant, if entitled to be discharged because of the State’s failure to bring him to trial within the required number of terms under Revised Statutues 1909, sections 5246, 5249, must apply for his discharge at the time he is entitled thereto.</p> <p>5. -: Failure to Discharge Defendant for Failure to Prosecute Must be Preserved by Bill of Exceptions. Court’s failure to discharge defendant for State’s failure to bring him to trial within the required number of terms under Revised Statutes 1909, sect’ons 5246-5249, is a matter of exception, and, to be reviewable by the Court of Appeals, must be properly preserved by bill of exceptions.</p> <p>6. -: Bill of Exceptions cannot Cover Matters of Exception Occurring at Previous Term. A bill of exceptions, filed pursuant to an order made at one term, cannot relate back and cover matters done and excepted to at a previous term, unless such matters are preserved by a term bill of exceptions.</p> <p>7. -: Change of Venue not Required Where Objection is Directed to Judge. Where defendant’s application for change of venue was leveled at the presiding judge, a change of venue was not required, under Revised Statutes 1909, sections 5198-5201; the selection of a special judge or the calling in of a judge of another circuit being sufficient.</p> <p>8. -: Venue not Changed in Absence of Recognizance to Appear in County to Which Case is Transferred. Where defendant on change of venue tó a county in another district did not execute a recognizance to appear in the other county, as required by Revised Statutes 1909, section 5187, when defendant is out on bail, the venue remained in the county in which the prosecution was commenced, and the cause was properly stricken from the docket of the county to which it had been transferred.</p>

— Hon. Joseph D. Perkins, Judge. (1) When plaintiff turned his back to the danger of falling rock, when he .might have faced it, in safety, he was guilty of contributory negligence, as a matter of law 26 Cyc. 1249, 1257, and 1258; Montgomery v. Railroad, 109 Mo. App. 88; Sparks v. Railroad, 31 Mo. App. 114, 115; Schiller v. Breweries Co., 156 Mo. App. 579, 580; Craig v. Railroad, 54 Mo. App. 527; Smith v. Box Co., 193 Mo. 737; Degonia v. Ry.

— Hon. Almon Ing, Judge (1) Any material alteration of a written instrument made after the execution thereof, without the consent of all the parties renders such instrument void. Bank v. Armstrong, 62 Mo. 59; McMurtry v. Sparks, 71 Mo. App. 126; Law v. Crawford, 67 Mo. App. 150; Barnett v. Nolte, 55 Mo. App. 184; 2 Cyc. 194 (4), 224 (24).

— Hon. Joseph D. Perkins, Judge. (1) The following oases hold that a rescission must be in toto, and that a party cannot affirm a contract in part and repudiate it in part.

— Hon. Grant Emerson, Judge. (1) “Immediate' notice provided for by policies is of the essence of the contract and a breach of such… Held: that such compliance with said conditions was a condition precedent and that one notice was necessary after such accident, and another notice after the claim was made. Underwood Veneer Co. v. London Accid, & G-uar. Co., 75 N. W. 996; Rooney v. Casualty Co., 67 N. E. 882; Ins. Co. v. Doll, 35 Md. 102; Ins. Co. v. Keeton, 49 So. 736.

<p>Appeal from Howell Comity Circuit Court. — Hon E. P. Dorris, Judge.</p> <p>(1) This action is based upon penal statute and applied only to sucb cases as come clearly within its provision and manifest spirit and interest. The' statute does not make a telegram company the insurer of the delivery of messages nor does it require it to employ extraordinary care and diligence to transmit and deliver the same, and the rule is that where there is a doubt such a statute ought not to be construed to inflict a penalty which the Legislature may not have intended. Eddington. v. Western Union Telegraph Co., 11 Mo. App. 93, 98; Bradshaw v. Telegraph Co., 150 Mo. App. 711; Bixke v. Telegraph Co., 96 Mo. App. 406; Moore v. Western Union Telegraph Co., 164 Mo. App. 165; Taylor v. Telegraph ■ Co., 288. (2) A telegraph company has the. right to fix reasonable office hours for the receipt and delivery of messages, and within which its business may be transacted. Taylor v. Telegraph Co., supra. (3) Upon the testimony neither plaintiff or Miss Madrone, were she plaintiff, would be entitled to recover, in this case, as the testimony of negligence is nega-, tive and the testimony of non-negligence is positive. Taylor v. Telegraph Co., supra; Bixke v. Telegraph Co., supra. (4) A telegraph company is not Hable to the sender for failure to deliver a message unless it is charged with notice of his interest, either from the message or otherwise. 6 Current Law, 1669; Towboat Co. .v. Telegraph Co., 52 S. E. 766; Telegraph Co. v. Bell, 90 S. W. 714. (5) That the company owes a duty, incurs a liability to those parties only of whose interest it has notice and for those which it might reasonably anticipate. The pertinent cases fall into four classes: (1) Those which assert a duty and liability to the undisclosed principle of the sender. Millikin v. Western Union Telegraph Co., 110 N. Y. 403, 19 N. E. 251, 1 L. E. A. 281; Harkness v. Western Union Telegraph Co., 73 Iowa, 190, 34 N. W. 811, 5 Am. St. Rep. 672; Leonard v. Telegraph Company, 41 N. Y. 544, 1 Am. St. Eep. 446; Cashion v. Western Union Telegraph Co., 124 N. C. 459, 32 S. E. 746; 45 L. E. A. 160; Western Union Telegraph Co. v. Morris, 28 C. C. A. 56, 83 Fed. 992; Western Union Telegraph Co. y. Adams, 75 Tex. 531, 12 S. W. 857, 16 Am. St. Eep. 920, L. E. A. 844; Western Union Telegraph Co. v. Brosche, 72 Tex. 654, 10 S. W. 734, 13 Am. St. Eep. 843; Western Union Telegraph Co. y. Church, 90 N. W. 878, 57 L. E. A. 905. (2) Those which recognize a duty and liability to a person who appears on the face of the telegram to be its beneficiary although neither its sender nor the addressee. Western Union Telegraph Co. v. Mellon, 96 Tenn. 66, 33 S. W. 725; Western Union Telegraph Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 16 Am. St. Eep. 920, 6 L. E. A. 844; Telegraph Co. y. McKibben, 114 Ind. 511, 14 N. E. 894. (3) Those which deny any duty or liability to those who do not appear from the message to have any interest in it. McCormick v. Western Union Telegraph Co., 25 C. C. A. 35, 79 Fed. 449, 38 L. R. A. 684; Western Union Telegraph Co. v. Kirkpatrick, 76 Tex. 217, 218, 13 S. W. 70, 18 Am. St. Eep. 37; Western Union Telegraph Co. v. Carter, 85 Tex. 580, 22 S. W. 961, 34 Am. St. Eep. 826; Morrow v. Western Union Telegraph Co., 21 Ky. L. E. 1263, 54 S. W. 853. (4) The decision which denies any liability to the undisclosed principle of the addressee. Lee v. Western Union Telegraph Co., 51 Mo. App. 375.</p>

<p>I. CROPS: Standing Crop goes to Vendee. A standing crop on land conveyed by general warranty deed without exception or reservation, or without exception or reservation in a contemporaneous contract concerning the sale of the land, goes to the vendee, unless there is evidence that the crop has actually been severed from the soil before the transfer or evidence from which the court can find that the parties treated the crops as severed from the land.</p> <p>2. -: Contract and Deed Held Not to Retain Crop to Vendor. contract between vendor and vendee of farm lands, though referring to shock corn as passing under the transfer, held not to contemplate that standing and ungathered corn should be considered as personalty, and hence it remained realty, and passed under a general warranty deed, although not mentioned in the contract or deed.</p>

<p>Appeal from Jasper County Court. — Hon. Grant Emerson, Judge.</p> <p>(1) Under tlie plaintiff’s petition there can be no recovery. (a) Because it shows decedent on the wrong side of the street, turning directly to the left, in the course of an approaching automobile, with knowledge or the full means thereof, and with no excusing circumstances, (b) Because it fails to state a cause of action under the humanitarian doctrine; it does not allege obliviousness on the part of the decedent, nor in its absence, any inability or limitation of his ability to avoid the injury. 29 Cyc. 694; Rubeck v. Sandler, 219 S. W. 406; Starke v. Bingham, 223 S. W. 946; Knapp v. Dunham, 195 S. W. 1062; Markowitz v. Railroad, 186 Mo. 350. (2) The peremptory instruction asked by defendant should have been given, (a) Because under the testimony plaintiff’s intestate was himself contributorily negligent in turning into the left side of the street and knowingly in the course of an approaching automobile, (b) Because no obliviousness of of decedent’s peril or defendant’s knowledge thereof is shown, nor that decendent was less able to avoid injury than defendant’s driver, at any sufficient time prior to the contract that he could have avoided it, so that decedent’s contributory negligence was continuing and any omission of the driver’s not the proximate cause of the injury. Columbia Taxicab Co. v. Roemmich, 208 S. W. 861; Topping v. Bourne, 191 S. W. 1032; Bourrett v. Railway, 121 N. W. 380; Matteson v. Railway, 92 p. 101; Kenelen v. Railroad, 216 Mo. 164; Moore v. Railway, 176 Mo. 545; Hopkins v. Auto School, 196 S. W. 775; Haffey v. Railroad, 154 Mo. App. 493; Hilmowicz v. Parker Webb Co., 131 N. W. 526; Lizzi v. Haff, 96 N. Y. S. 456; Simms v. Railroad, 116 Mo. App. 573; Robbiskand v. Spence, 112 Me. 13, 90 Mo. App. 430; Holwerson v. Railroad, 157 Mo. 216. (3) Plaintiff’s instructions 1 and 2 omit indispensable elements of liability. A situation of danger must predicate obliviousness or helplessness of plaintiff, as well as time to defendant to act. Plaintiff’s instruction under the last chance rule must contain all the elements of a liability. Knapp v. Dunham, 195 S. W. 1062; Stark v. Bingham, 223 S. W. 496; Holwerson v. Railway, 157 Mo. 245. (4) Defendant must have had sufficient time after realizing plaintiff will not exercise ordinary care for his own safety, in which to act to avoid injuring him. Pope v. Railroad, 242 Mo. 232; Hebler v. State Railway, 132 Mo. App. 551.</p> <p>(1) Plaintiff’s petition states a good cause of action under the humanitarian doctrine. Mere negligence on the part of deceased in going into danger will not defeat recovery under the humanitarian rule, if after his perilous situation is apparent then; is yet time for the truck driver to avoid injuring him by the exercise of ordinary care. Ingino v. Met. St. Ry. Co., 179 S. W. 773; Newton v. Harvey, 202 S. W. 249; Bybee v. Dunliam, 198 S. W. 190, 193; St. L. etc. Rcl. Co. v. Cambrón, 131 S. W. 1130; Woods v. Railroad, 188 Mo. 229; Strother v. Dunham, 193 S. W. 882, 885; Muller v. .Harvey, 204 S. W. 927; Bailey v. Railroad, 224 S. W. 837. Plaintiff’s right of recovery is not dependent on deceased’s obliviousness of peril. This is not a necessary element where the facts do not make it so. Newton v. Harvey, 202 S. W. 251; Woods v. Wabash, 188 Mo. 229; Ross v. Railroad, 132 Mo. App. 472; Bvbee v. Dunham, 198 S. W. 193; Strother v. Dunham, 193 S. W. 885; Martin v. Kansas City Ry. Co., 204 S. W. 589; Flynn v. Railroad, 166 Mo. App. 182; Nufer v. Met. Ry. 182 S. W. 792. ' The case was tried on the theory that obliviousness of peril was not an element in issue and appellant will not be permitted to raise that issue in the appellate court. Newton v. Harvey, 202 S. W. 251. (2) The peremptory instruction asked by defendant was properly refused. When an automobile driver sees that a collision is about to occur, and that another- person is so circumstanced that, though aware of it, lie is unable to avoid or escape the danger, the driver’s duty to avoid a collision, if he can reasonably do so, is complete, and if he fails to avoid it the injured party’s right of recovery is not. dependent upon the element of obliviousness. Newton v. Harvey, 202 S. W. 249; Ingino v. Met. St. Ry. Co., 179 S. W. 771; Woods v. Wabash, 188 Mo. 229; Ross v. Railroad, 132 Mo. App. 472; Bybee v. Dunham, 198 S. W. 193; Strother v. Dunham, 193 S. W. 885; Bailey v. Railroad, 224 S. W. 837. (3) Plaintiff’s instructions 1 and 2 properly declare the law. If plaintiff’s husband got into danger when plaintiff’s evidence said it did, then the want of obliviousness to danger had no influence on the driver. Hence, obliviousness to peril was not' a contested issue in the case and it was not proper ánd necessary for the instructions to affirmatively submit this issue to the jury. Bybee v. Dunham, 198 S. W. 193. Also cases cited under points one and two. (4) In the case at bar, if it be assumed that the deceased Avas guilty of negligence in turning tOAva.rd the curb and proceeding Avest upon the left side of the street, and that if he did so, the driver knew that it was impossible for the deceased to get out of the course of the automobile, then it Avas his duty to use ordinary care to avoid injuring him. These facts make inapplicable. Pope v. Railroad, 242 Mo. 282; Hebler v. St. Ry., 132 Mo. App. 551; Knapp v. Dunham, 195 S. W. 1062.</p>

<p>Appeal from Dunklin Circuit Court. — Eon. W. S. G. Walker, Judge.</p> <p>(1) We take up the first two assignments together, to-wit: (1) The court erred in refusing defendant’s instruction No. B. in the nature of a demurrer to the evidence at the close of all the evidence in the case; and, (2) the verdict of the jury is against the evidence, the' weight of the evidence, and the law under the evidence. Billingsley v. Kline Cloak Co., 196 Mo. App. 534; Van-sickle v. Brown, 68 Mo. 627; Stubbs v. Mulholland, 168 •Mo. 47. (2) We shall only call the court’s attention here to a remark found at the bottom of page 18 of the abstract, which was as follows: “Overruled; you got him into prison, and he has a right to tell how he got out.” This remark of the court was made on account of an objection just made to a statement attributed to the marshal while the plaintiff was in his custody. We think the ruling of the court was wrong, and most certainly his remark showed lack of even temper and un-: biased attitude in the trial. State v. Davis, 225 S. W. 706; State v. Kyle, 225 S. W. 1012; Rooker v. D. S. W. Ry. Co., 226 S. W. 69. (3) The court erred in submitting the case upon the theory that the plaintiff had made a case justifying exemplary or punitive damages. The court therefore erred in refusing defendant’s instructin No. 7. to the effect that the plaintiff could not recover exemplary or 'punitive damages. There is no substantial evidence in this record that the conductor of the defendant acted in bad faith or maliciously. All the evidence shows that the conductor merely asked the plaintiff to turn the seats, as the rules of the company did not permit the seats to face each other in the car. The plaintiff himself admits that, without any reasonable excuse or provocation, he refused to turn the seats and arose from his seat and drew his knife. He admits that he was mad. Three witnesses swear that the plaintiff opened his knife and these witnesses are corroborated by several others who say they saw plaintiff doing, something with his hands behind him as if opening his knife. Under these circumstances the plaintiff was not entitled to any punitive or exemplary damages. Maloy v. Railway Co., 178 S. W. 224; State v. Jungling, 116 Mo., 165; Berlin v. Thompson, 61 Mo. App. 734; Lewis v. Jannonpoulo, 70 Mo. App., 329; Wehmeyer v. Mulvihill, 350 Mo. App., 197; Hill v. Kresge Co., 202 Mo. App. 385; Vest v. S. S. Kresge Co., 213 S. W. 165; Billingsley v. Kline Cloak Co., 106 Mo. App. 534.</p> <p>(3) The court properly refused defendant’s instruction numbered B in the nature of a demurrer at the close of all the evidence and the verdict of the jury is in keeping with the evidence. The plaintiff made a ■prima facie case when it was shown that defendant’s agent had caused his arrest and detention without a warrant and all the testimony shows that the plaintiff was arrested without cause and that he did not threaten the conductor and did not violate the law in that way. Pandjiris v. Hartman, 196 Mo. 548; Hanser v. Bieler, 273 Mo. 326; Tiede v. Fuller, 264 Mo. 629; Wehmeyer v. Mulvihill, 150 Mo. App. 205; Thompson v. Bucholz, 107 Mo. App. 121. “An officer making an arrest is absolved from any liability, if he had reasonable grounds to suspect that a crime had been committed by the plaintiff, even though it may afterwards .turn out that he was not guilty, but the only justification which the individual or unofficial citizen could invoke would be that the party arrested is actually guilty.” Harris v. Terminal Ry. Ass’n, 218 S. W. 686; Pandjiris v. Hartman, 196 Mo. 539; Hauser v. Bieber, 271 Mo. 326; Leve v. Putting, 396 S. W. 1060. (2) The court did not err in-making prejudicial remarks in the presence of the jury. The particular remark complained of at the bottom of page 18 of appellant’s abstract were excepted, to by the appellant and the exception sustained. Appellant’s abstract, p. 39. (3) It was not error to refuse defendant’s instruction No. 7. There was substantial evidence that the arrest was without just warrant under the law. It was a question for the jury to determine whether plaintiff was entitled to punitive damages. Pandjiris v. Hartman, 196 Mo. 548; Hanser v. Bieler, 271 Mo. 326; Tiede v. Fuller, 264 Mo. 629; Wehmeyer v. Mulvihill, 1.50 Mo. App. 205; Thompson v. Bucholz, 107 Mo. App. 121; Summers v, Keller, 151 Mo. App. 626.</p>

<p>1. TERM BILL OF EXCEPTIONS WHEN FILED. A term bill of exceptions must be filed at the term at which the exceptions were taken, otherwise the errors complained of will not be reviewed by an appellate court.</p> <p>2. DEMURRER TO DEFENDANT’S SPECIAL ANSWER. In considering a demurrer to defendant’s special answer, all the testi7 mony will be taken as true which tends to sustain such answer.</p> <p>3. INTERSTATE SHIPMENTS: Freight Rates. The freight rate on shipments from one State to another is fixed by the tariffs filed with the Interstate Commerce Commission under autnority of the United States Statutes, and if through a mistake or from any other cause a lesser rate is collected by the carrier than the rate fixed by the Interstate Commerce Commission, the difference between the rate charged, and collected and the legal rate is still due and owing from the consignor to the carrier, and the carrier is legally entitled to recover the difference from the consignor.</p> <p>4. CONSIGNOR: Liable for Freight. The rule is that the consignor is the party primarily liable for the payment of the freight and this rule is enforced independent of the question whether the consignor is the owner, and regardless of the question whether the payment of freight is secured by a lien on the cargo, because the consignor is the party for whom the service is performed.</p> <p>' 5. WHEN CONSIGNEE WILL NOT PAY FREIGHT, CARRIER MAY LOOK TO THE SHIPPER. It is the duty of a carrier in interstate commerce to collect the charges and if the consignee will not pay, the carrier is not called upon to sue the consignee, but may look to the shipper.-</p> <p>6. DEMAND: Filing Suit. The filing of a suit is sufficient demand to start the running of simple interest.</p> <p>7. MOTION FOR NEW TRIAL: Excessive Judgment. The motion for a new trial must allege that the judgment was excessive, or the fact that it was excessive must be made in the assignment of errors.</p>

— Hon. Charles L. Henson, Judge. (1) The appellant’s peremptory instruction should have been given. Respondent made no case hy his evidence and is not entitled to recover, (a) Because respondent did the last work for deceased prior to his marriage in 1903 when his cause of action then accrued. His suit was filed in 1918 and was, barred by the Statute of Limitations, R. S. 1909, section 1889. Boyd v. Buchanan, 176 Mo. App. 56; McGrath v. O’Hare, 175 Mo.

<p>Appeal from Circuit Court of New Madrid County.— Eon. Sterling E. McCarty, Judge.</p> <p>(1) This suit cannot be maintained by a next friend. Clyde Hearon was twenty-two years old (less only seven days) when the amended petition on which this cause was .tried was filed, (a) It is fundamental that no person can maintain an action in respect to which he has no right or interest. Baxter v. Baxter, 43 New Jersey, Equity 82. (b) The question here is not the same question raised in those cases which hold that where appointment of a next friend is alleged in the petition plaintiff is not required to prove the appointment, unless defendant raises the question by special demurrer or plea in abatement. We are not questioning the fact of the appointment. But plaintiff’s proof showed too much — that he was not a minor at all, but an adult practically twenty-two years old when the petition on which the case was tried was filed, (c) Next friends are appointed for infants, not adults. Sec. 1165, R. S. 1919. (d) Suits must be maintained in the name of the real party in interest. Section 1155, R. S. 1919. (e) “The question as to who may maintain an action is a matter of law, and not subject to be controlled by the private conventions of the parties.” 1 Corpus Juris, 982; Markey v. Coal Co., 178 Fed. 881. (f) Clyde Hearon had the right to come in and sue as an adult, but he has not done so — has not availed himself of that right. Robinson v. Hood, 67 Mo. 660. (g) The defendant assailed the right of the next friend to maintain this suit at every possible opportunity. 1st. By de-. murrer. 2d. By answer 3d. By objection at beginning of trial before the introduction of any testimony, specifically calling attention of the court and plaintiff’s counsel to the fact that there was a defect of party plaintiff. 4th. By demurrer at the close of plaintiff’s case. Until this time there was nothing of record showing that Clyde Hearon was then an adult twenty-two years old. 5th. By demurrer at the close of the whole case. 6th. By motion for new trial. Paragraph seven of motion for new trial specifically called attention to the court’s error in permitting Lon Hearon to maintain this suit as next friend, Clyde Hearon being of age. 7th. By motion in arrest, (h) In support of appellant’s position we quote from other cases as follows: “When the action was commenced, W. C. Ricord, to whom alone the cause of action stated in the complaint belonged, was a minor. This being so, the suit was properly brought in the name of E. E. Ricord, his mother and guardian. At the time of the trial he had attained his majority, and, upon his motion, he was joined with his mother as a party plaintiff. This, we think, was error. It would have been proper to substitute him as the sole plaintiff in her place, but since they had no joint interest in the cause of action, they could not be united as plaintiffs.” E. E. Ricord, Guardian of W. G Ricord, a Minor, v. C. P. R. R. Co., 15 Nev. 167, 175. “It is said that we should presume that the infant had arrived at majority before the entry of judgment against him. We think not. The prochein ami’s name is still continued in the proceedings. Had the infant become of age the fact should have been entered upon the record at the happening of the event, and the cause afterwards been conducted by the plaintiff or his attorney without the use of the next friend. The judgment is reversed with costs.” Holmes, by next friend, v. Adkins, 2 Ind. 398, 399. “When a minor by next friend is one of the complainants, and pending the action the minor becomes of age, the name of the next friend may be stricken by amendment, and the cause proceed.” Lasseter v. Simpson, 78 Ga. 61, 65. “The authority of a solicitor, or guardian ad litem, or next friend of an infant defendant to represent the infant, in the conduct of the cause, expires with the minority of the infant.” Lang v. Belloff, 53 N. J. Eq. 298, quotation from syllabus. “Appellee, Emma Cunningham being an infant under the age of twenty-one years when the action was brought, had the right to sue by her next friend, and the defendant having filed his answer and gone to trial without excepting, it is now too late to object that the action was prosecuted by her next friend after she arrived at full age, or that he failed to show his right to sue as required by Sec. 37, Civil Code.” Bramel v. Cunningham, by next friend, 3 Ky. L. Bep. 512. “As the plaintiff had become of age since the commencement of the action the proper method of procedure was to strike from the complaint the allegation as to his non-age and the appointment of a guardián acl litem and continue the cause in his own name.” Seigler v. Southern Ry. Co., 67 Atl. 296. (2) The plaintiff must recover, if at all, upon proof of the specific acts of negligence alleged in his petition. Henneker v. Beetz, 217 S. W. 533; Waldhier v. Railroad, 71 Mo. 514; McCarty v. Rood Hotel Co., 144 Mo. 397, 402; McManamee v. Railroad, 135 Mo. 440, 447. (3) An employee does not assume risks caused by his employer’s negligence, but he does “assume the risks which are liable to happen on account of the nature of the employment when the employer has used reasonable care to avoid that result.” Powers v. Loose-Wiles Co., 195 Mo. App. 430; Whelan V. Zinc & Chemical Co., 188 Mo. App. 603-4; Oxford v. Dudley, 217 S. W. 607, 608; Kaemmerer v. St. Louis Axle Co., 196 S. W. 439, 442-3; Roberts v. Mo. & Kan. Telephone Co., 166 Mo. 370, 378.</p> <p>(1) Defendant’s duty to warn plaintiff, an inexperienced employee, of the danger concededly known to it was an absolute duty. Seals v. Whiting, 130 Mo. App. 420; Sailer v. Shoe Co., 130 Mo. App. 712; Jackson v. Butler, 249 Mo. 373; Anderson v. Terminal Ry. Co., 161 Mo. 424; Thompson v. Railroad, 93 Mo. App. 548; Reisert v. Williams, 51 Mo. App. 13; Bromley v. Smith, 12 Mo. App. 594; Czernick v. Ehrlict, 212 Mo. 395; Spencer v. Brunner, 126 Mo. App. 104; Bokamp v. Railroad, 123 Mo. App. 286; Dowling v. Allen, 102 Mo. 213, (2) Plaintiff’s earning capacity has been greatly and permanently impaired. He lost off his right hand the forefinger at the knuckle joint, the middle finger between the knuckle joint and hand, and the whole of the third or ring finger. He now has very little gripping and holding power left in his right hand, only the thumb and little finger remain. He is a young man now twenty-two years old and has no other way to earn his living than by manual labor. He has been maimed for life, the inconvenience aside from labor, the embarrassment and humiliation which occur every day as well as the pain and suffering he has endured count for much. The sum of five thousand dollars is not excessive. Parker v. Railroad, 164 Mo. App. 31; Oborn v. Nelson, 141 Mo. App. 428; Sailer v. Shoe Co., 130 Mo. App. 712; Montgomery v. Shoe Co., 217 S. W. 867.</p>

— Hon. E. P. Dorris, Judge. (1) It is competent for the defendant to unite in the same answer matter in abatement and matter in bar. Little v. Harrington, 71 Mb. 390; Byler v. Jones, 79 Mo. 264; Christian v. Williams, 111 Mo. 443; Meyer v. Insurance Co., 184 Mo. 487; Little Rock Trust Co. v. Ry. Co., 195 Mo. 669, 683. (2) An agent must be the cause and to require a jury to find what “indirectly” includes would give them a rather large field for operation.

<p>1. INSTRUCTIONS: Fire Insurance: Valued Policy Law: Instruction on Measure of Recovery: Proper as Not Omitting Necessary Elements and Directing Verdict. An instruction that under the law of this State an insurance company is prohibited from taking a risk on any property in this State at a greater rate than three-fourths of the value of the property insured, and when an insurance company writes a policy for a certain sum it is precluded from asserting that the value of the property at the time the insurance is taken out is not one-fourth more than the total amount of insurance, and that the jury should consider that the property insured was worth, at the time the policy was taken out, one-fourth more than the total insurance, and the only depreciation or lessening of the value of the property by sales or otherwise was. such as occurred after the policy was written, while its verbage may not be of the best, the purport of the instruction is to direct the jury as to the law respecting the measure of the recovery under section 7030, Revised Statutes 1909, then in force, and did not purport to cover the whole case and direct a verdict, and therefore was not erroneous as authorizing a verdict for plaintiff without any finding for plaintiff upon vital questions under the issues of-the case.</p> <p>2. INSURANCE: Fire Insurance: Defenses of Fraud in Burning Property and False Swearing as to Proof of Loss: Not Available to Dispute Valuation. Under section 7030, Revised Statutes 1909, providing that no company shall take a risk on any property in this State, at a ratio greater than three-fourths of the property insured, ánd when taken its value shall not be questioned in any proceeding, the defense that the fire was caused by the willful and intentional act of plaintiff for the purpose of destroying the property, coupled with a defense of false swearing in connection with the proof of loss, is not fraud in the procurement of the policy, and defendant was precluded from asserting that the value of the property, at the time of the issuance of the policy, was less than four-thirds of the amount of the insurance.</p> <p>3. INSTRUCTIONS: Fire Insurance: Valued Policy Law: Instruction on Valuation Inaccurate: Not Error Because Favorable to Appellant. In an action on a fire insurance policy, an instruction telling the jury to consider the value of the property as “one-fourth more than the total insurance” was inaccurate as the instruction should have told the jury that the property is to be regarded as worth, at the time of the issuance of the policy, one-third more than the total insurance thereon; but the inaccuracy was one in appellant’s favor and of which is could not complain.</p> <p>4. INSURANCE: -Fire Insurance: Salvage: Total Loss: Evidence. In an action on a fire insurance policy, while the evidence adduced in plaintiff’s behalf tended to show a total loss, and some of the evidence adduced by defendant might warrant the inference that there was salvage of some substantial value remaining after the fire, yet this inference, in view of the evidence was not a necessary one, and hence not one which the jury was obliged to draw.</p> <p>5. INSTRUCTIONS: Fire Insurance: Instruction as to Probability of Burning by Insured: Modification to Require Proof by Preponderance of Evidence Not Error. In an action on a fire insurance policy, an instruction to find for the defendant if the jury were of opinion from the evidence that it was more probable that the burning of the property was brought about by the procurement of the plaintiff than that he was innocent of it, was modified by adding “according to the weight and preponderance of the evidence.” Held not prejudicial error.</p> <p>6. INSURANCE: Fire Insurance: Willful Destruction of Property by Insured: Affirmative Defense: Burden of Proof. In an action on a fire insurance policy, the defense of willful and intentional destruction of the property by plaintiff was an affirmative defense, as to which defendant carried the burden.</p> <p>7. INSTRUCTIONS: Erroneous Instruction on “Burden of Proof” and “Preponderance of Evidence:” Properly Refused. An instruction that in mentioning “the burden of proof” and the “preponderance of the evidence” the court means merely to briefly express the rule of law that unless the evidence in regard to the facts necessary to a verdict in favor of plaintiff appear more credible than the contrary evidence in regard to said facts, the verdict should be for defendant, was properly refused, as it would not have furnished a proper guide to the jury as to what was meant by the terms “burden of proof” and “preponderance of the evidence” used in other instructions.</p> <p>8. -: Failure to Define “Burden of Proof” and “Preponderance of Evidence” Not Reversible Error. It is not reversible error to fail to define the terms “burden of proof” and “preponderance of the evidence.”</p> <p>9. TRIAL PRACTICE: Remarks of Counsel: Objections Sustained: No Further Action Asked: Cannot Complain. Where defendant’s objections to the argument of plaintiff’s counsel were sustained and-there was no request that the court go further by way of rebuking counsel or otherwise, defendant had no room for complaint in that regard.</p> <p>10. APPELLATE PRACTICE: Remarks of Counsel: Argument Against Branding Plaintiff and his Children by Finding That he Burned Insured Property: Not Reversible Error. In an action on a fire insurance policy where one of the defenses was that the fire was caused by the willful and intentional act of plaintiff for the purpose of destroying the* property, the remark of plaintiff’s counsel in his argument, “Will a man be branded, and his children after him be branded, until they go down to their graves, they had a dishonest father, by such testimony as this,” did not transcend the bounds of legitimate argument under the circumstances; at any rate, not to the extent of warranting an appellate court in disturbing the judgment on this ground, in view of the further defense that plaintiff was an alien enemy and testimony concerning plaintiff’s children was introduced, and counsel by referring to the children did not go beyond the record.</p> <p>11. INSURANCE: Fire Insurance: Vexatious Refusal to Fay: Statute: Fenal: Strictly Construed. Section 6337, Revised Statutes 1919, permitting a recovery of damages and a reasonable attorney’s fee if it appear from the evidence that the insurance company has vexatiously refused to pay the loss, is a penal statute and as such must be strictly construed.</p> <p>12. -:-:-: Verdict: Adverse: Not Conclusive. A vexatious refusal to pay a loss, within the meaning of section 6337, Revised Statutes 1919, is not to be deduced from the fact alone that the verdict is adverse to the defendant.</p> <p>13. -: -: -: Must be Willful and Without Reasonable Cause. In order to warrant the assessment of damages and attorneys’ fees, under section 6337, Revised Statutes 1919, as for a vexatious refusal to pay, it must appear that the refusal to pay the loss was both willful and without reasonable cause.</p> <p>14. -:-: -: Substantial Evidence of Willful Destruction of Property: Refusal to Pay Not Vexatious. Ii; an action on a fire insurance policy where there was substantial evidence, though circumstantial in character, tending to establish the defense of the willful destruction of the property by plaintiff, held that the only conclusion warranted by the facts is that defendant had reasonable cause to refuse to pay the loss on this ground, and hence was entitled to try out this issue before a jury without being penalized for so doing.</p>

<p>Mandamus Original Proceeding.</p>

<p>1. MASTER AND SERVANT: Acts of Servant’s Delegate: Servant Without Authority and Not Co-operating: Master Not Liable. The master is not liable for the acts of a stranger, where his servant, without authority so to do, delegates a particular duty in its entirety to such stranger and is not present and does not in any manner cooperate with the latter in the performance thereof.</p> <p>2. .-: Acts of Servant and Another: Acting in concert: Scope of Employment: Assault and Battery: Liability of Master: Case for the Jury. In an action for assault and battery to recover for injuries inflicted upon plaintiff by a servant of defendant in charge of his wagon and by another acting under the immediate supervision of the servant, evidence field to mate a case for the jury, as it warrants the conclusion that the driving forward of the defendant’s wagon against the plaintiff’s wagon, and all that was done in an apparent effort to get defendant’s wagon on its way, including the assault on plaintiff by defendant’s driver and his companion, was done under the immediate supervision of defendant’s servant, with his approval, and constituted in law his acts as the servant of defendant.</p> <p>3. APFELLATE FRACTICE: Demurrer to Evidence: Rule of Review. On appeal, in reviewing the action of the trial court in sustaining a demurrer to plaintiff’s evidence, the evidence is viewed in the light most favorable to plaintiff.</p> <p>4. ASSAULT AND BATTERY: Servant Acting in Scope of Employment: Assault by Servant and Another: Concert of Action; Master Liable for All Injuries Inflicted. Participation in an assault on plaintiff by defendant’s servant acting in concert with another, and while acting in the scope of his employment, in the furtherance of the business of defendant for which he was employed, being in law defendant’s assault, suffices to render defendant liable for the whole of the injuries inflicted upon plaintiff.</p>

<p>Appeal from the Circuit Court of the City of St Louis. —Hon. Leo. 8. Rassieur, Judge.</p>

<p>Appeal from the Circuit Court of Marion County. — Hon. Charles T. Hays, Judge.</p>

<p>Appeal from the Circuit Court of Cass County. —Hon. Hieing Cockrell, Judge.</p>

<p>CARRIERS: Pleading: Petition for Preight Charges Against Consignee Demurrable. In an action by carrier against consignee for freight charges, a petition is demurrable which did not allege consignee was a party to contract of transportation, and that the shipments were received and accepted by consignee; the mere existence of tbe relation of carrier and consignee, in tbe absence of an agreement, is not enough to establish an obligation upon the latter to pay transportation charges.</p>

<p>1. BROKERS: Not Entitled to Commission Where Not Procuring Cause. Where defendant was employed to procure a loan, and his efforts had something to do with final procuring of said loan, which was "obtained by another agent, but did not bring about (he loan, defendant was not procuring cause.</p> <p>2. APPEAL AND ERROR: Where Evidence is Evenly Balanced the Conclusion of the Chancellor Will be Deferred to on Appeal. Where the evidence is evenly balanced the appellate court will defer to the conclusion oí the chancellor.</p>

<p>Appeal from the Circuit Court of Jackson County. — • Hon. Clarence A. Burney, Judge.</p>

<p>Appeal from the Circuit Court of Daviess County. — Ron. Arch B. Davis, Judge.</p>

<p>1. MINES AND MINING: Lease: Lessee Did Not Forfeit Lease Where he Paid Specified Sum Under Lease in Lieu of Royalties not Produced. Where the terms of a mining lease provided for payment by lessee of royalties to lessors, and that if lessee failed to mine a sufficient amount of ore, which at the rate of royalty stipulated should amount to less than a specified sum. the lessee should pay lessors such sum added to royalty, if any, as should equal said specified sum each year, lessee did not forfeit lease in failing to pay any royalties when he paid said sum for the first. year and tendered the same before the end of the second year.</p> <p>2. -: Lessee Required to “Begin Operations’’ Within Certain Time, Held to Have Complied With Terms of Lease. Preparation of a mine within certain time after date of lease for actual digging. hoisting and disposing of ore, such as preparation of necessary timbers, prospecting, the location of shafts, placing- of machinery, is sufficient compliance with the terms of a lease requiring plaintiff to “begin operations” within a certain time.</p> <p>3. -: Placing Other Parties in Possession in Violation of Terns of Lease: Measure of Damages. Where during existence of lease lessors had leased mining land to other parties,.and placed them in possession, the lessee under prior lease was entitled to recover as damages the difference between the rent as provided for in the lease, and the rental value of the premises, and if the rental value was more than the rent reserved, plaintiff would be entitled to recover such difference.</p>

<p>1. CARRIERS: Contract: Custom: Construction: Where an Expression in Contract Under a Custom, Meant That Carrier Would Not Unload Within Certain Time, Carrier Was Obligated Not to do so. If there was a custom that the expression “36-hour release attached” meant that the carrier agreed not to unload within certain time, then the contract, executed in view of such custom, would constitute an agreement to that effect, the same as if it had been explicitly-written into the contract.</p> <p>2. COURTS: Interstate Shipment of Livestock Governed hy Decisions of the Federal Courts. The shipment, being interstate commerce, is governed by the rules and decisions of the Federal courts, which it is duty of State court to follow.</p> <p>3. EVIDENCE: Contract: Covering Interstate Shipment Cannot be Pieced Out by Oral Testimony. A written contract covering an interstate shipment cannot be pieced out by oral testimony.</p> <p>4. CARRIERS: Contract: Covering Interstate Shipment Must be in Writing. Under the Federal law and decisions such contracts must be in writing.</p> <p>5. -: Federal Law Granting Shipper Power to Extend Time of Confinement of Livestock, not a Privilege to Impose Obligation to Keep Stock Confined as Long as 28 Hours. The Federal 28-hour law, (Sec. I, 34 U. S. Stat. at Large, Chap. 3594, p. 607), was never intended to create an obligation on carrier not to unload live stock within a lawful time, but to prevent carrier from confining it beyond a certain time, and the shipper could, by written request, extend limit to 36 hours, which power granted to shipper was'not a privilege to ipso facto impose an obligation on carrier to keep stock confined as long as 28 hours, but was only a privilege to extend the time of confinement from 28 to 36 hours.</p> <p>6. -: Duty at Common Law to Feed, Water and Rest Live Stock at Suitable Intervals. It was the common-law duty of carrier transporting for long distance to feed, water and rest live stock at suitable intervals to avoid injury.</p> <p>7. -: Rules and Regulations of Interstate Commerce Commission Govern Interstate Shipments. Rules and regulations of Interstate Commerce Commission govern interstate shipments, and both shipper and carrier are bound thereby.</p> <p>8. --: Agreement to Carry Stock Past 28-hour Limit, Imposing Special Duties, Without Corresponding Rate Therefor, is Void as a Discrimination. If the carrier agreed to carry stock without unloading, past the 28-hour limit, and past the regular loading place, for that period, then such was a special agreement, imposing special duties without a corresponding rate therefor, and would be void as a discrimination.</p> <p>9. -: In Absence of Contract to Carry Beyond 28-hour Limit, and Where Action is Based upon Breach of Contract Created by* Acceptance of Shipment with 36-hour Release Attached Plaintiff Cannot Recover. Where no contract is established obligating carrier to carry shipment beyond, or not to unload until after lapse of 28 hours, and the cause of action is based upon a breach of such contract created by acceptance of shipment with 36-hour release attached, plaintiff is not entitled to recover.</p>

<p>1. APPEAL AND ERROR: New Trial: Stenographer’s Notes Destroyed: Depends Upon Circumstances and Determined upon Principles Analogous to Equitable Doctrines. The right of appeal is a creature of the statute, and there being no statute providing for a new trial because the stenographer’s notes are destroyed, the right to have a cause remanded on this ground must depend upon the circumstances, and any relief granted on such ground should he determined upon principles analogous to equitable doctrines rather than strict rules of law.</p> <p>2. -: Where Stenographer’s Notes Destroyed Appellant not Entitled to New Trial as Matter of Right, and Must be Wholly Without Fault. Appellant by reason of destruction of stenographer’s notes is not entitled as a matter of strict, absolute, legal right to a new trial, but the court may, in the exercise of inherent, extraordinary powers, grant same to prevent injustice being done to one who is himself wholly without fault or blame, and such freedom from fault or blame is a necessary prerequisite to the granting of the relief sought.</p> <p>3. -: Appellant Seeking New Trial Because of Destruction of Stenographer’s Notes Must Exercise Due Diligence and be Free from Laches. Party seeking new trial by reason Of destruction of stenographer’s notes must not only be free from actual fault or negligence, but must also show that he exercised due diligence and was free from laches.</p> <p>4. -: Appellant Failing to Exercise Due Diligence in Obtaining Transcript Before Destruction of Evidence not Entitled to New Trial. Under section 12669, Revised Statutes, 1919, upon appeal, it is the 'stenographer’s duty to furnish transcript of evidence, and under section 12671 he is entitled to prepayment of his fees therefor, and while section 1460, Revised Statutes 1919, gives appellant until the time for filing abstract in which to file bill of execeptions, it was the duty of appellant not to actively delay the stenographer in the performance of his work, 'and where a stenographer has started to transcribe the evidence, but stopped because he could not obtain guaranty of payment from appellant, a non-resident of the State, and whose attorney informed him he need not proceed with the work, and was not thereafter authorized to complete same, and courthouse burned destroying notes, it is held, that if it had not been for appellant’s postponement, his inability to have stenographer’s notes transcribed would not have occurred, and by reason of his failure to exercise due diligence he is not entitled to new trial.</p>

<p>Appeal from the Circuit Court of Pettis County. — Hon. . Hopkins B. Sham, Judge.</p>

<p>1. DAMAGES: Breach of Contract: Lost Profits not Recoverable Where Uncertain, or not Within Contemplation of Parties. In an action for damages for breach of contract where recovery is denied for loss of profits it is because the profits were uncertain, conjectural, or speculative in character, and not susceptible of being reasonably ascertained, or because they were not deemed to have been within the contemplation of the parties, being outside of the legitimate scope of the breached contract.</p> <p>2. -: -: Natural and Proximate Result: Compensation Should be Equal to the Injury. The general rule of damages for a breached contract is that compensation should be equal to the injury, subject to the condition that the damages be confined to 206 M. A. — 39 those naturally and proximately resulting from the breach, ana are not within the two classes above specified.</p> <p>3. -: -: Lost Profits Necessarily Following Breach, Recoverable if Evidence Sufficiently Certain and Definite. In an action for breach of contract, if it reasonably appear that profits would have been made had the terms of contract been observed, and that their loss necessarily followed its breach, they may be recovered as damages If evidence is sufficiently certain and definite to warrant jury in estimating their extent.</p> <p>4. -: Sales: Buyer Entitled to Recover Usual and Ordinary Loss of Profits Due to Delay and Failure to Deliver Threshing Outfit. Where seller was informed when sale of threshing outfit was made to buyer, and again after delivery of a part thereof, that buyer had already obtained the job of threshing for a definitely ascertainable number of customers with a definite amount of wheat to thresh, and the use of threshing outfit, and the ability to perform the definite job buyer had obtained, induced buyer to enter into the contract, the buyer was entitled to recover damages for the usuai and ordinary loss on such job to the extent the same could be ascertained and definitely shown with reasonable certainty.</p>

<p>1. JUDGMENT: Attorney and Client: Abandonment of Cause by Counsel, Without Notice to Client, Sufficient to Set Aside Default Judgment. Where an attorney abandons a case, without notice to the defendant, who had a good defense on the merits, and was not guilty of negligence, a default judgment rendered against him, without giving him a reasonably sufficient time to enable him to secure other counsel will be set aside.</p> <p>2. CONTRACTS: Breach: Exchange of Property: Plaintiff Alleging Breach Must Establish Performance on His Part. In an action for damages for breach of contract for exchange of property, each party being required to do certain things necessary to be done before an exchange could be enforced, plaintiff must establish the fact that he has performed, or offered to perform his part.</p> <p>3. JUDGMENT: Default: Setting Aside Discretionary With Trial Court. The setting aside of a default judgment is within the discretion of trial court.</p>

<p>Appeal from the Circuit Court of Booue County. — Hon. David H. Harris, Judge.</p>

<p>Appeal from Pettis Circuit Court. — Hon. Hopkins B. Shain, Judge.</p>

<p>1. Gifts: Definition: Gift Inter vivos. A gift inter vivos is a contract wbicb takes place by mutual consent of the giver, who divests himself of the thing given in order to transmit the title of it to the donee, who accepts and acquires the title to it, and it operates, if at all, in the donor’s lifetime, immediately and irrevocably.</p> <p>2. -: Constituent Elements of Gift Inter vivos. The constituent elements of a gift inter vivos are: (a) that the purpose of the donor to make the gift must be clearly established, and (b) the gift must be complete by actual, constructive or symbolical delivery, without power of revocation.</p> <p>3. -: Deposit of Money For Use of Another with Condition Requiring Donor to Join in Checking on Fund, Held, Not a Gift Inter Vivos. Where money was deposited in bank" for use of alleged donee by the alleged donor, and hank was not authorized to pay out any funds without check bearing their joint signatures, there was no gift inter vivos, the gift not having been unconditional and complete because the depositor retained dominion over the money.</p>

<p>Appeal from Circuit Court of Boone County. — Hon. David H. Harris, Judge.</p>

<p>INSTRUCTION'S: Omission of Matter of Defense from Plaintiff’s Instructions is not Error Where the Matter was Fully Covered in Defendant’s Instructions. In an action to recover the value of cer- ' tain awnings sold and delivered, an instruction for plaintiff purporting to cover the entire case and directing a verdict is nor erroneous in that it omitted an element of defense, the question of the cancellation of the order for the awnings, because the objection to said instruction was cured by the giving on behalf of defendant proper instructions covering such matters of defense.</p>

<p>Appeal from the Circuit Court of Jackson County.— Hon. Daniel E. Bird, Judge.</p>

<p>1. DIVORCE: Finding on Question of Indignities Governed by Facts in each case. The statute fails to define indignities, and the question must, therefore, be governed largely by the facts in each individual case.</p> <p>2. -: Appellate Court Must Form its Own Conclusions ■ as to the Merits. While in actions for divorce the appellate court will defer largely to the conclusions of trial judge it must not neglect its duty of forming its own conclusions as to merits.</p> <p>3. -: Burden of Proof on Plainitff to Support Allegation of Indignities. Where plaintiff’s petition alleged indignities such as to render her condition intolerable, the burden was on plaintiff to prove the allegation to the satisfaction of the court.</p> <p>4. -: Desertion not Indignity: Under Statute, if for Period of One Year, Ground of Divorce. Desertion is not an indignity, but is, in itself, if for a period of one year, a ground for divorce under section 2370, Revised Statutes 1909.</p> <p>5. -: Indignities: May Consist of Species of Mental Cruelty. Indignities contemplated by divorce law consist of unmerited, contemptuous conduct, or any act which manifests contempt, incivility, or injury accompanied with insult amounting to a species of mental cruelty.</p> <p>6. -: -: Acts of Mental Torture and Cruelty-are Indignities. Where the evidence showed defendant abandoned plaintiff without just cause, stated that he did not love her, intimated to her and friends that she had been guilty of wrongful and improper conduct, without naming it, justifying his abandonment of her, publication in newspaper he would not be responsible for her debts, when she had not contracted any, and his refusal to return to her in spite of her earnest efforts to become reunited, are acts of mental torture and cruelty, constituting indignities, entitling plaintiff to divorce.</p> <p>7. -: Alimony and Counsel Fees not Excessive. Where evidence showed defendant was a man of vigor and good business ability, earning large sums of money in his business, an allowance of $100 per month permanent alimony, and $150 attorneys fees for the prosecution of the case, which required three days for the trial, and $100 for maintenance and support, pending appeal, $150 attorney’s fees and $25 for cost of printing briefs was not excessive.</p>

<p>1. VENDOR AND VENDEE: Real Estate: Vendor Unable to Perform Purchaser May Rescind and Recover Purchase Money Without Tendering Performance Before Suit. Where defendants placed themselves in a position where a merchantable title was beyond their power to deliver under contract, plaintiffs upon breach thereof had the option of waiving the forfeiture by accepting another tract of land, or to rescind and demand the return of their payments, and tender of performance by plaintiff before suit was not a prerequisite to the rescinding of the contract.</p> <p>2. PARTIES: Joint Liability: Evidence Held Sufficient to Warrant-Verdict Against Two Companies Having Officers in Common. In an action against two land companies by purchaser for rescission of contract, and return of price paid, evidence hela not to warrant the conclusion that one of said companies, having officers in common with the other, and the names of both being used interohangably during the trial by counsel for defendants, was not interested in the subject-matter in controversy to a sufficient extent to support a verdict against the two companies.</p>

<p>Appeal from the Circuit Court of Jacksou County.— Hon. 0. A. Lucas, Judge.</p>

<p>1. INSURANCE: Construction of Policy: Vested Interest: Assigned Without Consent of Beneficiaries: Legal Heirs Held not to Have a Vested Interest in Life Insurance Policy. In an action brought to determine the ownership of proceeds of a certain life insurance policy, where insured designated as beneficiaries, under said policy, which authorized him to change beneficiaries, his legal heirs, representatives or assigns, the use of the word “assigns,” even if it did not require that the proceeds of the policy should go to executor of deceased rather than to his heirs, indicated an intention on the part of the insured to reserve the power to divert the insurance from such heirs, and for this reason the “legal heirs” had no vested interest in the policy and it could be assigned without their consent.</p> <p>2. -: Wills: Change of Beneficiaries: Execution of WiE Directing That Proceeds of Insurance be Used to Pay Debts was Sufficient to Change Beneficiaries Under Policy from Heirs to Executor. The legal heirs having no vested rights in the policy of insurance and the insured having the right to change beneficiaries, without their consent, such change of beneficiaries from heirs to executor was made when insured executed a will directing- that the proceeds of his life insurance be used to pay his debts, and surplus, if any, should go to his wife.</p> <p>3. -: -: Assignment: Notice: Disposition by Wiil Considered. an Assignment, and Notice of Death of Insured was Sufficient Notice Thereof. Where policy provided that if assigned, written notice should be given as soon as practicable, and the insurance company made no point as to lack of consent on its part to the manner of changing beneficiaries, the disposition by will of the proceeds may be considered an assignment, and provision of policy requiring notice was met by written notice given company shortly after death of insured.</p>

<p>1. CARRIERS: Damages: Evidence Held Insufficient to Support Judgment Where Value of Lumber was not Shown. In an action to recover damages against railroad company for converting a car of lumber, it is held, that there was no evidence as to value of lumber alleged to have been converted, necessitating reversal of judgment and remanding of cause.</p> <p>2. COURTS: Interstate Commerce: Shipment Governed by Federal-Decisions. An action to recover damages for conversion of interstate shipment of lumber is governed by Federal decisions.</p> <p>3. CARRIERS: Contracts: Provision in Contract Limiting Loss to Value of Property at Time and Place of Shipment is Void. A provisio in shipping contract that amount of loss for which carrier is liable shall be computed on basis of value of property at place and time of shipment is void because it would prevent a recovery of the full actual loss if it was enforced.</p> <p>4. -: Damages: Measure of Damages Reasonable Market Value of Property at Time and Place of Conversion. In an action against carrier committing alleged wrongful act and not against initial carrier for conversion of car of lumber' after transportation ended, and consignee had redelivered lumber to be carried under another contract, ■ it would make no difference whether shipment is an interstate one or not, since the measure of damages in either view is the reasonable market value of lumber at time and place of conversion.</p> <p>5. SALES: Title: Delivery Does not Per se Import an Acceptance or Sale. In order to confer title there must be an acceptance of the property, and delivery does not per se import an acceptance or sale.</p> <p>6. CONVERSION: Title: Possession: Title to Property, or Eight of Possession Necessary to Recovery. Conversion cannot be maintained where plaintiff has neither the right of property in, nor the right of possesssion to, the chattels alleged to have been converted.</p> <p>7. CAREIEES: Conversion: Consignee Having Eight of Possession May Sue for Damages for Conversion, Except as Against True Owner. Where goods have been delivered to carrier to be transported to a consignee, the latter has the possession of the goods, and by virtue thereof, has the right to recover them or their value from any one who seizes them en route, except the true owner.</p> <p>8. -:-: Action by Consignee Cannot be Defeated by Carrier Showing Title in Another Without Connecting Itself with the Eights of Such Person. In an action by consignee against carrier for conversion of car of lumber the carrier could not defeat the action by showing title in another without connecting itself with the rights of such person.</p> <p>9. APPEAL AND EREOR: In View of Unsatisfactory State of Testimony Cause Remanded so Evidence May be More Pully Developed. In an action against carrier by consignee for conversion of car of lumber, sold according to directions of shipper, where consignee’s right to possession of car was not clearly shown, and there was a mass of correspondence stricken out on defendant’s objection, held that while consignee’s recovery was not proper under the evidence, the cause should be remanded for another trial, where the evidence may be more fully developed.</p>

<p>1. GARNISHMENT: Procedure: Issues are Made up not by Interrogatoris and Answer, but by Denial and Reply. In garnishment cases, the summoning of the garnishee and the propounding of interrogatories to him and his answer thereto, are merely the preliminaries to the making up of the issues between plaintiff and the garnishee; when the latter answers saying he has no money or property of defendant, the denial of the plaintiff is the foundational pleading on which his cause of action against the garnishee rests and the issues are made up not by the interrogatories and answer, but by the denial and reply.</p> <p>2. -:--: Justices of Peace: A Denial of Garnishee’s Answer Should Contain Averment of Special Facts, Advising Garnishee of Issues he is Required to Meet. Garnishment cases arising in the circuit court are governed by section 1864, Revised Statutes 1919, which specifically requires the denial to contain, specially, the grounds upon which a recovery is sought against the garnishee, but there is no such statutory requirement, relating to garnishments in justice courts, and since the denial of the garnishee’s answer is the foundational pleading of the cause of action against the garnishee, it should state facts constituting that cause, even though there is no statutory provision relating to justice’s garnishments, and where garnishee answered it did not have any money or property of tlie defendant nor did not owe him anything to which plaintiff filed a mere general denial, such pleading constituted a legal conclusion and did not raise a triable issue which garnishee could meet with a reply.</p> <p>3. JUSTICES OF PEACE: Pleading: No Formal Pleadings Required. Under Section 2735, Revised Statutes, 1919, no formal pleadings are required in a justice’s court.</p> <p>4. -: Garnishment Proceeding: General Denial by Plaintiff 01 Garnishee’s Answer not Amendable on Appeal. Unde rsection 2735, Revised Statutes 1919, governing what shall be filed to constitute the foundation of an action, the filing in the justice court by plaintiff of a general denial of garnishee’s answer, denying any indebtedness, did not constitute a cause of action, and could not be amended on appeal in the circuit court under section 2910, Revised Statutes 1919, providing for amendments on appeal with certain specified limitations.</p>